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The Diversion of Waters Affecting the United States and Canada

Published online by Cambridge University Press:  12 April 2017

James Simsarian
James Simsarian*
Affiliation:
Columbia University
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Extract

The submission by the Government of the United States to the Government of Canada on May 28, 1938, of a rewritten draft of a Great Lakes-St. Lawrence waterway treaty brings to the forefront again the desirability of concluding a comprehensive agreement between the two Governments for a mutually advantageous utilization of the available navigation and power resources along the boundary basin. In view of the heightened interest in both the United States and Canada, a reexamination of the diplomatic correspondence between the United States and Great Britain and Canada since the end of the nineteenth century regarding the diversion of waters in the United States or in Canada which affected interests in the other country is opportune. It is of significance to note the positions taken by the United States and Great Britain and, later, Canada, in diplomatic negotiations and by significant municipal acts, as to the legal rights of the United States and Canada to the use or diversion of (1) boundary waters, (2) waters which are tributary (and entirely within the territory of one country) to boundary waters, and (3) waters of rivers flowing across the boundary. The distinction between the first situation and the second and third is an important one to observe.

Type
Research Article
Information
American Journal of International Law , Volume 32 , Issue 3 , July 1938 , pp. 488 - 518
Copyright
Copyright © by the American Society of International Law 1938

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References

1 The author wishes to express his appreciation to Professors Joseph P. Chamberlain, Charles Cheney Hyde, and Philip C. Jessup, of Columbia University, for their constructive criticisms of this paper, and to acknowledge the kind permission accorded by Mrs, Chandler P. Anderson to the author to use the records and letters of Mr. Chandler P. Anderson, which have been invaluable in this study.

2 June 17, 1902, 32 Stat. 388.

3 The British Ambassador transmitted a copy of the report of the Canadian Privy Council, approved Oct. 27, 1902, to the Sec. of State, John Hay, Nov. 3, 1902, Preliminary Memorandum Prepared by Chandler P. Anderson on the St. Mary and Milk Rivers Irrigation Question for the Secretary of State, Elihu Root, June, 1907, p. 2, in Chandler P. Anderson, Records of the Negotiations Relating to the Use of Boundary Waters Between the United States and Canada, 1905–1908, hereafter cited as Anderson, Records, 1905–1908.

4 Ibid., pp. 3 and 18.

5 Dated Dec. 29, 1902, ibid., p. 3.

6 Dated Jan. 6, 1903, ibid., p. 4.

7 Sec. Hay to Sir Michael H. Herbert, Br. Amb., Feb. 19, 1903, ibid., p. 5.

8 Sec. Hay quoted from the Reclamation Act of 1902 (32 Stat. 388) : “That the right to the use of water shall be appurtenant to the lands irrigated and beneficial use shall be the basis, the measure, and the limit of the right.” Ibid., p. 6.

9 No reply was received to Sec. Hay’s note of Feb. 19, 1903, ibid.

10 Ibid., p. 7.

11 W. L. Penfield to Sec. Hay, May 6, 1904, ibid., p. 8.

12 Dated May 9, 1904, ibid., p. 9.

13 Dated July 15, 1904, ibid.

14 Ibid., p. 10.

15 Oct. 13, 1904, ibid.

16 Dec. 30, 1904, ibid.

17 Aug. 2, 1905, ibid., p. 12.

18 See Memorandum Concerning the St. Mary and Milk River Irrigation Project, submitted in advance of the hearing of the International Joint Commission by Manton M. Wyvell, May 5, 1915, in Chandler P. Anderson, Records of the Negotiations Relating to the Use of Boundary Waters Between the United States and Canada, 1909–1911, hereafter cited as Anderson, Records, 1909–1911.

19 Malloy, Treaties, III, 2607 (ratifications exchanged May 5, 1910); this Journal, Supp., Vol. 4 (1910), p. 239.

20 Although the company applied only to the Sec. of Interior in Feb., 1904, for permission to use public lands for flowage and other purposes, the company later sought the needed authorization of the Sec. of War before the diversion of waters could be undertaken. For Sec. 10 of Act of March 3, 1899, see note 92.

21 International Waterways Commission, Second Progress Report, Dec. 1, 1906 (Washington, 1906), p. 6.

22 See Report prepared by Chandler P. Anderson on the questions presented for the consideration of the Department of State involving international relations in the matter of the application of the Minnesota Canal and Power Company, Sept., 1907, p. 3, in Anderson, Records, 1905–1908.

23 In accordance with the request of Congress (32 Stat. 373), President Roosevelt in July, 1902, invited the Government of Great Britain to join in the formation of an international commission, to be composed of three members from the United States and three to represent the interests of Canada, “to investigate and report upon the conditions and uses of the waters adjacent to the boundary lines between the United States and Canada, including all of the waters of the lakes and rivers whose natural outlet is by the river St. Lawrence to the Atlantic Ocean; also upon the effect upon the shores of these waters and the structures thereon, and upon the interests of navigation, by reason of the diversion of these waters from or change in their natural flow; and, further, to report upon the necessary measures to regulate such diversion, and to make such recommendations for improvements and regulations as shall best subserve the interests of navigation in said waters.” The Government of Great Britain accepted on June 2, 1903, and the International Waterways Commission was set up accordingly. International Waterways Commission, Progress Report, Dec. 1, 1905 (Washington, 1905), p. 10. For the concern in the United States in 1898 and 1900 because of the possible extended lowering of the level of the Great Lakes by diversions in both the United States and Canada, thus diminishing the volume of the Niagara Falls, see the Report of the New York State Reservation at Niagara in 1898, Moore, Digest, I, 657; and the Report of the Senate Committee on Foreign Relations in Feb., 1900, Sen. Rep. 461, 56 Cong., 1 Sess.

24 International Waterways Commission, Second Progress Report, p. 20. Previous to the agreement of the United States, the Commission had considerable doubt about its jurisdiction over the Minnesota Canal and Power Company case because the Rainy River and the Lake of the Woods were not naturally tributary to the Great Lakes system, and the United States maintained that the jurisdiction of the Commission was limited to cases related to the Great Lakes system only, unless the two countries conferred additional jurisdiction upon it. International Waterways Commission, Progress Report, Dec. 1, 1905, p. 11; ibid, Second Progress Report, p. 6.

For the opinions of the Chief of Engineers and the Advocate-General to the Sec. of War in 1905 on the Minnesota case, see Report of Anderson for Department of State, Sept., 1907, pp. 5–8, Anderson, Records, 1905–1908. Cf. dictum in Minnesota Canal and Power Company v. Pratt, 101 Minn. 197 (1907).

25 Nov. 15, 1906, International Waterways Commission, Second Progress Report, p. 31.

26 Art. II provides, in part: “It being understood that all the water communications and all the usual portages along the line from Lake Superior to the Lake of the Woods, and also Grand Portage, from the shore of Lake Superior to the Pigeon River, as now actually used, shall be free and open to the use of the citizens and subjects of both countries.” Signed Aug. 9, 1842, ratifications exchanged Oct. 13, 1842, Malloy, Treaties, I, 650.

27 International Waterways Commission, Second Progress Report, p. 28.

28 See 21 Opinions of the Attorneys General, 274 (Dec. 12, 1895).

29 International Waterways Commission, Second Progress Report, p. 29.

30 See U. S. For. Rel., 1880, p. 783. This controversy between the United States and Mexico involved, however, that portion of the Rio Grande that formed the boundary between the two nations.

31 Sec. Root to Ambassador Bryce, Jan. 13, 1908, in draft of letter from the Sec. of State to Sec. of War in the matter of the application of the Minnesota Canal and Power Company, submitted by Chandler P. Anderson to the Sec. of State, P. C. Knox, May 7,1910, Anderson, Records, 1909–1911.

32 Sec. Root rested his position on a memorandum submitted to him by Mr. Anderson, which he transmitted to the British Ambassador in his note to the latter in Jan., 1908. See Mr. Anderson to Sec. Root, Aug. 26, 1908, Chandler P. Anderson, Letters, VI, 197, 202. In the report prepared by Mr. Anderson for the Sec. of State, Sept., 1907, pp. 14–29, Mr. Anderson maintained that Art. II of the 1842 treaty did not necessarily imply an obligation on the United States and Great Britain to keep the route supplied with water, or to leave tributary waters undisturbed. The article had no other purpose than to define the location of a portion of the international boundary. Anderson, Records, 1905–1908.

Cf. Pigeon River Improvement, Slide and Boom Co. v. Charles W. Cox, Ltd., 291 U. S. 138 (1934); this Journal, Vol. 29 (1935), p. 150.

33 Sec. Root to Amb. Bryce, Jan. 11, 1909, in Anderson, Letters, VI, 380.

34 See p. 504.

35 See Sec. Knox to Amb. Bryce, Jan. 3, 1910, in Anderson, Letters, VII, 451; and draft of letter from Sec. Knox to Sec. of War, submitted by Mr. Anderson to Sec. Knox, May 7, 1910, following the exchange of ratifications on May 5, 1910, stating that the Sec. of State withdrew his opposition to the granting of the application of the Minnesota company, so far as any international questions were concerned, in Anderson, Records, 1909–1911.

36 Act of May 29, 1889, Annotated Statutes of Illinois (W. C. Jones and K. H. Addington, eds., Chicago, 1913), III, Ch. 42, par. 4284.

37 When the Chicago drainage canal was opened in January, 1900, the State of Missouri brought suit in the Supreme Court of the United States against the State of Illinois and the Sanitary District of Chicago to subject the district to judicial supervision upon the allegation that the method of sewage disposal being employed was a continuing nuisance and dangerous to the health of the inhabitants of Missouri who lived along the Mississippi River below the point where the Illinois River emptied into the Mississippi, above St. Louis. The court, however, dismissed the complaint of Missouri because, as Mr. Justice Holmes noted in his opinion, Missouri did not prove her allegations, the evidence submitted to the court indicating that the waters of the Illinois River had actually been improved by the great volume of pure water which was diverted into it from Lake Michigan to dilute the sewage. Missouri v. Illinois and the Sanitary District of Chicago, 180 U. S. 208 (1901) and 200 U. S. 496 (1906).

38 The Sec. of War acted under the authority of Sec. 10 of the Act of March 3, 1899. See note 92.

39 See permits of April 9, 1901, and July 22, 1901, Hearings before House Committee on Rivers and Harbors, on improvement of Illinois River, Illinois, and abstraction of water from Lake Michigan, 69 Cong., 1 Sess., p. 202. On May 8, 1899, Sec. of War R. A. Alger granted permission to the district to open the drainage canal. Ibid., p. 201.

40 Permit of Jan. 17, 1903, signed by Asst. Sec. of War, W. C. Sanger, ibid., p. 203. From Jan. 17, 1903, to March 31, 1903, the district was permitted to increase the flow from the Chicago River to 350,000 c.f.m., but thereafter the flow reverted to the maximum of 250,000 c.f.m. Ibid.

An application made by the Sanitary District for permission to divert an additional 4,000 c.f.s. from Lake Michigan through the Calumet River to the Chicago canal to drain the southern part of Chicago was denied on March 4, 1907, by Sec. of War Taft. Canada, Sessional Papers, 1928, Sess. Paper No. 227, Correspondence relating to diversion of the waters of the Great Lakes by the Sanitary District of Chicago, March 27, 1912, to Oct. 17, 1927 (Ottawa, 1928), p. 7.

But permission was granted in 1910 to the Sanitary District to use the Calumet River as well as the Chicago River for the diversion of water from Lake Michigan to the drainage canal, provided that the district did not increase its total diversion from the lake over the already allotted 4,167 c.f.s. Permit of June 30, 1910, signed by Acting Sec. of War, R. S. Ohver, in Hearings before House Committee on Rivers and Harbors, on improvement of Illinois River, Illinois, and the abstraction of water from Lake Michigan, 69 Cong., 1 Sess., p. 204.

41 March 15, 1906, 34 Stat. 824.

42 Report of March 19, 1906, transmitted by President Roosevelt to Congress on March 27, 1906, 59 Cong., 1 Sess., Sen. Doc. 242, p. 2.

43 April 11, 1906, Cong. Rec., XL, 5108.

44 For the Act as approved on June 29, 1906, see 34 Stat. 626.

45 This amendment was aimed particularly against the suggestion of the International Waterways Commission in May, 1906, that a treaty between the United States and Great Britain should be negotiated or legislation enacted by the United States and Canada to limit the Chicago diversions to 10,000 c.f.s., the other American diversions to 18,500 c.f.s., and the Canadian diversions to 36,000 c.f.s. See note 47.

46 Cong. Rec., XL, 9097–9098.

47 May 3, 1906, Canada, Sessional Papers, XLII, 1907–1908, No. 9, Sess. Paper No. 19b, p. 13.

48 George C. Gibbons, Oct. 17, 1906, quoted in Hearings before House Committee on Rivers and Harbors, on improvement of Illinois and Mississippi Rivers, and the diversion of water from Lake Michigan into the Illinois River, 68 Cong., 1 Sess., Pt. 2, p. 1274.

49 Nov. 27, 1906, International Waterways Commission, Second Progress Report, p. 3.

50 Jan. 4, 1907, Canada, Sessional Papers, XLI, 1906–1907, No. 8, Sess. Paper No. 19, p. 173.

51 March 9, 1908, quoted in Hearings before House Committee on Rivers and Harbors, on the improvement of Illinois and Mississippi Rivers, and the diversion of water from Lake Michigan into the Illinois River, 68 Cong., 1 Sess., Pt. 2, pp. 1278–1279.

52 George Clinton, American Commissioner, and George C. Gibbons, Chairman of Canadian Section of Commission, to Sec. of State Root and to the Prime Minister of Canada, Sept. 24, 1907, in Anderson, Records, 1905–1908.

53 Because of immediate criticism in Canada, Mr. Clinton and Mr. Gibbons submitted an amendment to modify the application of “boundary waters” to the St. Lawrence River in order not to include the entire river but only from its source to the forty-fifth parallel of north latitude. Mr. Clinton to Sec. Root, Dec. 3, 1907, ibid.

54 Robert Bacon, Actg. Sec. of State, to Mr. Anderson, Oct. 15, 1907, ibid.

55 Mr. Anderson to Sec. Root, Dec., 1907, ibid.

56 Feb. 15, 1908, ibid. See also 34 Stat. 626.

57 Sec. Root testified before the Senate Committee on Foreign Relations in Jan., 1909, that he followed the report of the International Waterways Commission and added 1,500 to the American maximum of 18,500 to get round numbers in the 1909 treaty. He stated: “… so our limit is higher than we want, but their limit could not be cut down below what it is because there are three companies on the Canadian side who have the right and works there. Two of these companies are owned in the United States, and the power they produce is now substantially in the United States, so that as long as that condition of things exists it is as well for us to have them over there as to have them on our side. That condition of things is bound to continue in substance, because their grants from Canada provide that they shall furnish one half of the power they produce in Canada at the same rates they charge in the State of New York, and the Canadians have held that that carries the right to furnish the other half in the State of New York, so that one half of the power produced is bound to come to the United States.” Quoted in Hearings before subcommittee of the Senate Committee on Foreign Relations, on S. Res. 278, 72 Cong., 1 Sess., p. 1007.

58 For text of Art. V, see p. 504. Mr. Anderson informed Senator Lodge in a communication on Feb. 6, 1909, that Sec. Root had the assurance of Mr. Gibbons that the Canadian Government would not attempt to interfere with the distribution of the excess power during the life of the 1909 treaty. Anderson, Letters, VI, 396.

59 Aug. 20, 1908, see ibid., VI, 166 and 224.

60 Aug. 26, 1908, ibid., VI, 197.

61 Nov. 12, 1908, Anderson, Records, 1905–1908.

62 Ibid.

63 Nov. 24, 1908, Anderson, Records, 1905–1908.

59 Ibid.

65 Ibid. See also Mr. Gibbons to Mr. Anderson, Dec. 10, 1908, ibid.; and statements of Sec. Root at hearings before Senate Committee on Foreign Relations in Jan., 1909, quoted in Hearings before subcommittee of Senate Committee on Foreign Relations, on S. Res. 278, 72 Cong., 1 Sess., p. 1007.

66 Anderson, Records, 1905–1908.

67 Dec. 5, 1908, Anderson, Letters, VI, 352.

68 Mr. Gibbons to Mr. Anderson, Dec. 10, 1908, Anderson, Records, 1905–1908. Mr. Gibbons noted at the bottom of his letter that his suggestions in this note of Dec. 10, 1908, were of course his personal views and were subject to the approval of the Government at Ottawa, Canada.

69 Mr. Anderson to Mr. Gibbons, Dec. 14, 1908, Anderson, Records, 1905–1908.

70 Mr. Gibbons to Mr. Anderson, Dec. 16, 1908, ibid.

71 Mr. Gibbons to Mr. Anderson, Dec. 15, 1908, ibid.

72 Malloy, Treaties, III, 2607; this Journal, Vol. 4 (1910), p. 239.

73 Quoted in Hearings before subcommittee of Senate Committee on Foreign Relations, on S. Res. 278, 72 Cong., 2 Sess., p. 1005.

74 Ibid., pp. 1006, 1007, 1008, 1009, and 1010.

75 Ibid.

76 Ibid., p. 1006.

77 Quoted in Hearings before House Committee on Rivers and Harbors, on the improvement of the Illinois and Mississippi Rivers, and the diversion of water from Lake Michigan into the Illinois River, 68 Cong., 1 Sess., Pt. 2, p. 1294.

78 Mr. Anderson did not mention here waters flowing from boundary waters, which might be classified in the second group.

79 Hearings before House Committee on Rivers and Harbors, on the improvement of the Illinois and Mississippi Rivers, and the diversion of water from Lake Michigan into the Illinois River, 68 Cong., 1 Sess., Pt. 2, p. 1297.

80 Ibid., Pt. 2, p. 1294.

81 Ibid., Pt. 2, p. 1297.

82 In a letter from Mr. Anderson to Sec. of State Robert Lansing, May 9, 1918, with reference to a question asked by Sec. Lansing of Mr. Anderson with regard to the application of the 1909 treaty to the diversion of water from Lake Michigan for the Chicago drainage canal, Mr. Anderson quoted from his correspondence with Mr. Gibbons in 1908. Mr. Anderson declared that in view of this correspondence and Article II (2), as agreed to by Mr. Gibbons and himself, no restriction was imposed with reference to the diversion of the waters from Lake Michigan for the Chicago drainage canal, nor did Great Britian surrender any right which it may have had to object to any interference with or diversion of the waters of Lake Michigan for the canal, in case the effect should be productive of material injury to the navigation interests on the Canadian side of the boundary. Anderson, Records, 1909–1911.

83 Malloy, Treaties, III, 2607; this Journal, Vol. 4 (1910), p. 239. For the activities of the International Joint Commission set up by this treaty, see Joseph Chacko, C., The International Joint Commission between the United States of America and the Dominion of Canada (New York, 1932)Google Scholar. As the hearings and orders of the Commission are in pursuance of authority given by the 1909 treaty, they are not indicative of the rules of international law governing the diversion of waters. Accordingly, the activities of the Commission are not considered in this study.

84 The Committee of the Privy Council of Canada authorized counsel and other representatives to submit a brief and to appear before Secretary Stimson to oppose any proposal which would result in lowering the level in the boundary waters and in the St. Lawrence River. Correspondence relating to diversion of the waters of the Great Lakes by the Sanitary District of Chicago, March 27, 1912, to Oct. 17, 1927, Canada, Sessional Papers, 1928, Sess. Paper No. 227, p. 3.

See Canada, Department of Marine and Fisheries, Papers relating to the application of the Sanitary District of Chicago for permission to divert 10,000 c.f.s. of water from Lake Michigan (Ottawa, 1912).

85 Ibid.

86 Canada, Sessional Papers, 1928, Sess. Paper No. 227, p. 7.

87 See Gov. Gen. of Canada to the British Ambassador, Nov. 23, 1912, and a report of the Committee of the Canadian Privy Council, approved Nov. 19, 1912, ibid., p. 4.

88 Huntington Wilson, Acting Sec. of State, to Ambassador Bryce, Dec. 24, 1912, ibid., p. 5. Cf. note 40.

89 Ambassador Bryce to W. J. Bryan, Sec. of State, March 17, 1913, ibid., p. 18. Cf. the Gov. Gen. to the British Ambassador, Feb. 12, 1913, ibid., p. 14.

90 Ambassador Bryce to Sec. Bryan, March 17, 1913, ibid., p. 19. Cf. the Gov. Gen. to the British Ambassador, June 9, 1916, to reaffirm the position taken by Canada in 1912 and 1913, ibid., p. 20.

91 Art. VII of treaty of 1842: “It is further agreed that the channels in the river St. Lawrence on both sides of the Long Sault Islands and of Barnhart Island, the channels in the river Detroit on both sides of the island Bois Blanc, and between that island and both the American and Canadian shores, and all the several channels and passages between the various islands lying near the junction of the river St. Clair with the lakes of that name, shall be equally free and open to the ships, vessels, and boats of both parties.” Malloy, Treaties, I, 650.

92 Sec. 10 of Act of March 3, 1899: “That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited;… and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same.” 30 Stat. 1121, 1151.

93 Act of May 29, 1889, Annotated Statutes of Illinois, op. cit., III, Ch. 42, par. 4307.

94 Sanitary District of Chicago v. United States, 266 U. S. 405.

95 Ibid., 266 U. S. 405, 432.

96 Opinion of Judge Carpenter quoted in Hearings before House Committee on Rivers and Harbors, on the improvement of the Illinois and Mississippi Rivers, and the diversion of water from Lake Michigan into the Illinois River, 68 Cong., 1 Sess., Pt. 2, p. 453.

97 Sanitary District of Chicago v. United States, 266 U. S. 405.

98 See p. 511 and note 109.

99 April 22, 1921, Canada, Sessional Papers, 1928, Sess. Paper No. 227, p. 21.

100 Sec. Hughes to Amb. Geddes, May 11, 1921, ibid., p. 23.

101 H. G. Chilton, British Chargé d’Affaires ad interim, to Sec. Hughes, Dec. 29, 1923, ibid., p. 31.

102 Mr. Chilton to Sec. Hughes, Feb. 13, 1924, ibid., p. 35.

103 Sir Esme Howard, Br. Amb., to Sec. Hughes, March 21, 1924, ibid., p. 42; same to same, June 13, 1924, ibid., p. 43.

104 Sec. Hughes to Amb. Howard, June 28, 1924, ibid., p. 45.

105 Sanitary District of Chicago v. United States, 266 U. S. 405.

106 Amb. Howard to Sec. Hughes, Feb. 24, 1925, Canada, Sessional Papers, 1928, Sess. Paper No. 227, p. 46.

107 Permit issued by John W. Weeks, Sec. of War, ibid., p. 48.

108 See Report of the Special Master, Charles E. Hughes, to the Supreme Court of the United States, Oct. term, 1927, relating to lake levels, 70 Cong., 1 Sess., H. Doc. 178, p. 53.

109 Amb. Howard to Sec. Kellogg, Feb. 5, 1926, Canada, Sessional Papers, 1928, Sess. Paper No. 227, p. 60.

110 Sec. Kellogg to Amb. Howard, July 26, 1926, ibid., p. 64.

111 See p. 509.

112 Sec. Kellogg to Mr. Chilton, Envoy Extraordinary and Minister Plenipotentiary, Chargé d’Affaires ad interim, Dec. 7, 1926, Canada, Sessional Papers, 1928, Sess. Paper No. 227, p. 67.

113 Beaudry, Laurent, Chargé d’Affaires, to Sec. Kellogg, Sept. 1, 1927, ibid., p. 68.Google Scholar

114 Sec. Kellogg to Vincent Massey, Oct. 17, 1927, ibid., p. 69.

115 See Report of the Joint Board of Engineers on the Improvement of the St. Lawrence River between Lake Ontario and Montreal and on Related Questions, submitted Nov. 16, 1926, to the Governments of the United States and Canada (Washington, 1927).

116 Wisconsin et al. v. Illinois and the Sanitary District of Chicago, 278 U. S. 367.

117 Report of Mr. Hughes to Supreme Court, Nov. 23, 1927, 70 Cong., 1 Sess., H. Doc. 178.

118 Ibid., p. 53.

119 278 U. S. 367 (Jan. 14,1929).

120 See note 92.

121 Wisconsin et al. v. Illinois et al., 281 U. S. 696 (April 21, 1930). Cf. the second report of the Special Master and the opinion of Mr. Justice Holmes on April 14, 1930, in Wisconsin et al. v. Illinois et al., 281 U. S. 179.

See editorial comment by Garner, J. W., “The Chicago Sanitary District Case,” this Journal, Vol. 22 (1928), p. 837 Google Scholar; and also Dealey,, J. Q. Jr., “The Chicago Drainage Canal and St. Lawrence Development,” ibid., Vol. 23 (1929), p. 307 Google Scholar. Cf. Smith, H. A., “The Chicago Diversion,” British Year Book of International Law, X (1929), 144.Google Scholar

122 Wisconsin et al. v. Illinois et al., 287 U. S. 568.

123 E. F. McClennen was appointed by the court as Special Master on Dec. 19, 1932, 287 U. S. 578; he submitted his report on March 13, 1933, 288 U. S. 594.

124 Wisconsin et al. v. Illinois et al., 289 U. S. 710. Cf. 289 U. S. 395.

The net diversion of water from Lake Michigan during 1935 averaged 6,484 c.f.s. See Semi-Annual Report of the Sanitary District of Chicago of Jan. 1, 1937, made pursuant to decree of April 21, 1930, to the Supreme Court of the United States, p. 12. The report was received by the court on Jan. 11, 1937, 57 S. Ct. 318. The net diversion during 1936 was reduced to average 4861 c.f.s., Semi-Annual Report of Jan. 1, 1937, p. 13. The net diversion during 1937 was 4997 c.f.s., Semi-Annual Report of Jan. 1, 1938, pp. 12–13.

Congressman Claude V. Parsons, of Illinois, introduced the following bill in the House of Representatives (H. R. 8327) on Aug. 21, 1937, which was referred to the Committee on Rivers and Harbors: “That in order to regulate and promote commerce among the several states and with foreign nations and to protect, improve, and promote navigation and navigable waters in the Mississippi Valley, the Secretary of War is hereby authorized and directed to withdraw from Lake Michigan, in addition to all domestic pumpage, an annual average of five thousand cubic feet of water per second, to flow into the current of the Lakes-to-the-Gulf Waterway heretofore authorized by Congress.” Cong. Ree., LXXX, 9683.

125 Great Lakes-St. Lawrence Deep Waterway Treaty between the United States and Canada, Sen. Ex. C, 72 Cong., 2 Sess.

126 Cf. note 143.

127 “International Section” was defined in the preliminary article as meaning that part of the St. Lawrence River through which the international boundary line runs and which extends from Tibbetts Point at the outlet of Lake Ontario to the village of St. Regis at the head of Lake St. Francis. Cf. note 144.

128 Cf. note 144.

129 Sen. Ex. C. 72 Cone., 2 Sess.

130 Hearings on S. Res. 278, 72 Cong., 1 Sess., p. 279.

131 Ibid., p. 297.

132 Mr. Rogers mentioned the Lake of the Woods treaty of Feb. 24, 1925, as an illustration of the spirit of consideration which entered into American negotiations and agreements with Canada. See U. S. Treaty Series No. 721 (ratifications exchanged July 17, 1925); this Journal, Supp., Vol. 19 (1925), p. 128.

133 Hearings on S. Res. 278, 72 Cong., 1 Sess., p. 305.

134 Department of State, Press Releases, X, 14.

135 Cong, Rec., LXXVIII, 4475.

136 W. A. Riddell, for the Canadian Minister, to Cordell Hull, Sec. of State, Jan. 27, 1938, Department of State, Press Releases, XVIII, 408.

137 The proposed diversion of water was from the Kenogami River, a tributary of the Albany River, via Long Lake, all in the Province of Ontario, into Lake Superior.

138 For the text of Arts. III and V, see p. 504. Art. VIII provides: “This International Joint Commission shall have jurisdiction over and shall pass upon all cases involving the use or obstruction or diversion of the waters with respect to which under Articles III and IV of this treaty the approval of this Commission is required, and in passing upon such cases the Commission shall be governed by the following rules or principles which are adopted by the High Contracting Parties for this purpose:

“The High Contracting Parties shall have, each on its own side of the boundary, equal and similar rights in the use of the waters hereinbefore defined as boundary waters….” Mailoy, Treaties, III, 2607; this Journal, Vol. 4 (1910), p. 239.

139 Department of State, Press Releases, XVIII, 400.

140 Cordell Hull, Sec. of State, to Sir Herbert Marler, Can. Min., Department of State, Press Releases, No. 256, May 31, 1938, p. 3.

141 Cf. M. P. Hepburn, Prime Minister of Ontario, to Congressman Walter G. Andrews of New York, Feb. 12, 1938, Cong. Rec., LXXXIII, 10450.

142 Cf. the Niagara convention and protocol signed by the United States and Canada on Jan. 2, 1929, but not in force. Correspondence and Documents relating to St. Lawrence Deep Waterway Treaty 1932, Niagara Convention 1929, and Ogoki River and Kenogami River (Long Lake) Projects and Export of Electrical Power (Ottawa, 1938), p. 125. See Warren Robbins, Am. Min., to Can. Sec. of State for External Affairs, March 4, 1935, ibid., p. 12.

See also President Roosevelt to Congressman Andrews, March 25, 1938, Cong. Rec., LXXXIII, 10450.

143 The earlier definition of “Great Lakes System” was changed to include Georgian Bay in Lake Huron. Preliminary article (c).

144 The provisions of Art. VIII (d) were also made applicable in the event of the diversion of rivers into the International Section above their existing points of confluence.

“International Section” was defined in the 1938 draft treaty to mean that part of the St. Lawrence River through which the international boundary line runs. Preliminary article (f).